A.P. Sen, J.
1. This judgment will also govern the disposal of First Appeal No. 121 of 1971 (Daryao Singh v. Smt. Halkibai and others.
These appeals brought from a common judgment of Shri R. L. Sanghani, IIIrd Addl. District Judge, Bhopal, dated 2nd September 1971, raise a common question and, therefore, they are disposed of by a common judgment
2. The relevant facts, in brief, are as follows: The field Khasra No, 77/6/2, area 29.54 acres, situate in village Kondari, belonged to Major Wall Mohammad, By an agreement dated 14-6-1954, Ex. P-19, he agreed to sell the field to Barelal for Rs. 3692.50 p. pursuant to the agreement, he received Rs. 1,000 by way of earnest money. On 2-8-1954 Barelal paid him Rs. 700, vide receipt, Ex. P-20. Barelal paid Rs. 1,848 in all but could not arrange for the balance and evidently abandoned the contract in favour of Ganesh Singh, his brother-in-law, i.e., wife's brother. The balance consideration of Rs. 1844.50 was, accordingly, paid by Ganesh Singh, Wali Mohammed executed a sale-deed on 22-6-1955, Ex. P-21, of the said field in favour of Sunder Singh minor son of Ganesh Singh and Mst. Mathura Bai, his widowed sister and their names were duly mutated as the khatedars of the same. On 28-5-1965, Sunder Singh and Mst. Mathura Bai entered into an agreement, Ex. D-2, to sell the land to Barelal and Ramratan for a consideration of Rs. 24,000. They received Rs. 18,000 under the agreement and placed the purchasers in possession. Incidentally, Barelal is the father-in-law of Sunder Singh, and Ramratan, the brother-in-law of Ganesh Singh. This led a dispute relating to possession between Daryao Singh on the one hand (party No. I) and Ramratan on the other (party No. II), and there was an imminent apprehension of breach of peace, and on the report of the Station House Officer, Bari, proceedings under Section 145 of the Code of Criminal Procedure were started. On 6-10-1965, the Sub-Divisional Magistrate, Bareli, passed a preliminary order under Section 145(4) of the Code, requiring the parties to file their statements in respect of their respective claims, and placed the disputed land under attachment on 27-10-1965. The party No. I, Daryao Singh, claimed to be in possession of the disputed land in pursuance of an earlier agreement dated 6-8-1964, Ex. P-5, entered into with Ganesh Singh, acting as guardian of his minor son Sunder Singh, and Mst. Mathura Bai, under the terms of which Ganesh Singh had agreed to sell the land to him for a consideration of Rs. 21,000, and alleged that he had paid Rs. 10,750 towards part-payment of the price. On the other hand, the Party No. II, Ramratan, claimed to be in possession along with Barelal, by virtue of the aforesaid agreement dated 28-5-1965, Ex. D-2, entered into with Sunder Singh and Mst. Mathura Bai, on their paying Rs. 18,000.
3. On 15-11-1965, i.e, after passing of the aforeasid preliminary order, Sunder Singh and Mst. Mathura Bai executed the sale-deed, Ex. D-3, in favour of Barelal and Ramratan, on receipt of the balance consideration of Rs. 6,000. On 17-11-1965, Barelal and Ramratan instituted Civil Suit No. 12-A of 1965 for declaration of their title too, and for grant of perpetual injunction in respect of Khasra No. 77/6/2, on the strength of their sale-deed, Ex. D-3, against Daryao Singh, his brothers Sethji and Dadu Bhaiya, and sons Hanumat Singh and Himmat Singh, who, in their written statement filed on 1-2-1966 alleged that Sunder Singh and Met. Mathura Bai were not the real purchasers, under the sale-deed dated 22-6-1955, Ex. P-21, executed by Major Wali Mohammad, but were benamidars for Daryao Singh. During the pendency of this suit, the Sub-Divisional Magistrate passed a final order dated 19-4-1966, declaring Ramratan (Party No. II) to be in possession of the disputed land on the date of the preliminary order .and two months next before the date of such order. The final order of the Sub-Divisional Magistrate, Bareli was eventually upheld by the High Court in Criminal Revn. No. 298 of 1965 Daryao Singh v. Ramratan on 18-8-1966. Thereafter, on 10-10-1966 Daryao Singh and his two minor sons Sher Singh and Achhe Bhaiya alias Daulat Singh brought Civil Suit No. 10-A of 1968, for specific performance of the agreement dated 1-10-1964, Ex. P-5, against Ganesh Singh. They subsequently amended the plaint and sought a declaration that the sale-deed dated 22-6-1955, Ex. P-21, executed by Major Wali Mohammad in favour of Sunder Singh and Mst. Mathura Bai was a benami one for Ganesih Singh. The points involved in both the suits were common and the evidence was also common, and, therefore, the parties requested that the suits be tried together; and, consequently the evidence was recorded in Civil Suit No. 10-A of 1968. and the documents which were on the file of Civil Suit No. 12-A of 1965, were brought on the record of that suit.
4. The learned Addl. District Judge, in a carefully written judgment, has found on the evidence that though Daryao Singh paid the balance of consideration amounting to Rs. 1844.50 p., he was not the real purchaser under the sale-deed dated 22-6-1955, Ex. P-21, executed by Major Wali Mohammad in favour of Sunder Singh and Mst. Mathura Bai; and, that they were, therefore, not benamidars for him, but were in possession of the property in their own rights, before they sold the same to Barelal and Ramratan by the sale-deed dated 15-11-1965, Ex. D-3, for a consideration of Rs. 24,000. He has also found that when Ganesh Singh paid the balance consideration of Rs. 1844.50 p. to Major Wali Mohammad on 22-6-1955 for execution of the sale-deed dated 22-6-1955, Ex. P-21, in favour of Sunder Singh and Mst. Mathura Bai, he intended that title should pass to them and not that they should be mere benamidars for him. He has further found that since Sunder Singh had attained majority, his father Ganesh Singh had no authority in him to act as his guardian and, therefore, the alleged agreement dated 1-10-1964, Ex, P-5, entered into by Ganesh Singh, purporting to act as guardian of his minor son Sunder Singh, in favour of Daryao Singh, was not binding on Sunder Singh and thus did not create any right in Daryao Singh to obtain a sale-deed from Sunder Singh. On these findings, the learned Addl. District Judge has dismissed Civil Suit No. 10-A of 1968 whereby Daryao Singh and his two minor sons claimed specific performance of the alleged agreement dated 1-10-1964, Ex. P-5, entered into by Ganesh Singh, purporting to act as guardian of his minor son Sunder Singh, and Mst. Mathura Bai, and decreed Civil Suit No. 12-A of 1965 brought by Barelal and Ramratan declaring that they were the owners of the suit land, and granting a perpetual injunction restraining Daryao Singh, his brothers Sethji and Dadu Bhaiya, and sons Hanumat Singh and Himmat Singh, from interfering with their possession of the land.
5. The short point involved in these appeals is whether Sunder Singh and Mst. Mathura Bai were mere benamidars for Ganesh Singh and, therefore, the agreement dated 1-10-1964, Ex. P-5, entered into by him was specifically enforceable. It is urged that the learned Addl. District Judge was in error in holding that Ganesh Singh intended that title under the sale-deed should pass to his son Sunder Singh and widowed sister Mst. Mathura Bai for which, it is said, there is no foundation in the pleadings. The submission is that the doctrine of advancement is not applicable in India and, therefore, when property is purchased by a father in the name of his son, or by a brother in the name of his widowed sister dependant on him, it must be presumed that they are benamidars, and if they claim it as their own by alleging that the father or the brother, as here, intended to make a gift of the property to them, the onus rests upon them to establish such a gift. In other words, the contention is that the presumption is, therefore, in favour of the transaction being benami and reliance is placed on Lakshmiah Chetti v. Kothandrama Pillai, AIR 1925 PC 181 and on certain other decisions. There can be no dispute with the proposition. The difficulty, however, lies in the application of that principle to the facts of the present case.
6. Mayne in his Treatise on Hindu Law, 11th Edn., makes the following observation at p. 953:
'A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject.'
7. Venkatarama Aiyar J. in delivering the judgment of the Supreme Court in Sree Meenakshi Mills Ltd. v. Income-tax Commr., AIR 1957 SC 49, states:
'In this connection, it is necessary to note that the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benami-dar. This is the class of transactions which. is usually termed as benami. But the word 'benami' is also occasionally used, perhaps not quite accurately to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B.'
8. The burden was, in the instant case, upon Daryao Singh to prove that the purchase was benami. There is no presumption in Hindu Law that transactions standing in the name of the wife are the husband's transactions. The decision of the Court must not rest upon suspicion, surmises and mere conjectures but upon legal grounds and on legal testimony, and the onus of establishing that a transaction is benami is on the person .asserting benami nature of the transaction and it must be strictly made out. In the absence of such evidence, the apparent title must prevail. (See Gangadara Ayyer v. Subramania Sastrigal, AIR 1949 FC 88).
9. Even in cases where there is positive evidence that money is contributed by the husband and not the wife, that will not conclude the matter as to its being benami, though that is an important criterion. The fact that the consideration has been paid by a person other than the ostensible owner, is not necessarily in itself sufficient to establish that such a transaction is benami. That test is subject to the qualification 'in the absence of all other relevant circumstances'. It is, therefore, of utmost importance in determining the question to consider (i) the surrounding circumstances, (ii) the position of the parlies and their relations to one another, (iii) the motives which could govern their actions, (iv) their ex-subsequent conduct, and (v) possession of the title deed.
10. The pronouncement of their Lordships of the Privy Council in Sura Lakshmiah Chetty v. Kothandarama Pillai (supra) cannot be interpreted as laying down broadly that a purchase in India by a husband in the name of his wife is always to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. It is to be noted that their Lordships never intended to lay down a proposition like this. There, the husband purchased the property in the name of his wife with his own money. The law on the point was thus laid down by Sir John Edge :
'There can be no doubt that a purchase in India by a native of India of property in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife.'
It is clear from the rule thus enunciated that the fact that the consideration for a purchase has been found by the husband Is not conclusive against the wife in whose name the property had been purchased. It is only when the purchase is 'unexplained by other proved or admitted facts' that the conclusion should follow that the transaction is benami for the husband.
11. In our view the appeals must fail for various reasons. In the first place, the plaintiffs In this suit, i.e., Daryao Singh and his two minor sons, are not very sure of their stand, Daryao Singh filed two plaints. In the first plaint presented on 1-10-1966 the prayer sought in para 20 (a) was that it be declared that the sale-deed dated 22-5-1955, Ex. P-21, executed by Major W.ali Mohammad in favour of Sunder Singh and Mst. Mathura Bai was a benami one for Ganesh Singh, In the second plaint, i.e., the amended plaint filed on 20-9-1967 that relief was deleted but it was nonetheless alleged in para 8 (1) that the transaction throughout was benami and that Ganesh Singh was the real purchaser and sole beneficiary and he alone utilised the usufruct thereof, meaning thereby that Sunder Singh and Mst. Mathura Bai were mere benamidars, In the connected suit, Civil Suit No. 12-A of 1965 which was prior in point of time, Daryao Singh and others impleaded as the defendants, had in their written statement filed on 1-2-1966, i.e., much earlier, alleged in para 15 thereof that Sunder Singh and Mst. Mathura Bai were benamidars for Daryao Singh. In view of these conflicting pleas, it is clear that Daryao Singh and others have not come to Court with a definite case. They have been challenging their stand from time to time as it suits their purpose. We pointedly asked the learned counsel appearing for them, and he unequivocally stated before us that he adopts the stand taken in the amended plaint, i.e., the one filed on 20-9-1967 in this suit. He also advanced his arguments upon the basis that Sunder Singh and Mst. Mathura Bai were benamddars for Ganesh Singh. The learned counsel having given up the plea that Sunder Singh and Mst. Mathura Bai were benamidars for Daryao Singh, the finding of the learned Addl. District Judge that they were not benamidars for Daryao Singh must be upheld.
12. Upon a consideration of the evidence in the light of all the circumstances appearing, the learned Addl. District Judge has, however, held that purchase by Ganesh Singh of the suit land in the name of his son Sunder Singh, and widowed sister Mst. Mathura Bai, with his own funds, was with the object that it should belong to them and should not be within his reach and, therefore, the transaction was not benami. That conclusion of his is, in our view, unassailable on the evidence on record. In a benami purchase of land, the person who is proved, as a fact, to be the beneficial owner, is the pactual owner,
13. Bearing these principles in mind, we find that there was no particular motive or reason for Ganesh Singh to have purchased the suit land benami in the names of his son Sunder Singh and widowed sister Mst Mathura Bai. The reason put forward by Daryao Singh in the plaint in Civil Suit No. 10-A of 1968, and in the written statement in Civil Suit No. 12-A of 1965 for going in for the benami transaction was that though he had paid to Wali Mohammad Rs. 1844.50 p. under agreement dated 14-6-1954 Ex. P-19, but still balance of Rs. 1844.50 p. remained payable and so he requested orally his brother-in-law Ganesh Singh to lend him that amount, and he agreed orally to advance it on condition that a benami sale-deed should be executed in the name of his minor son Sunder Singh and his widowed sister Mst. Mathura Bed, who had come to live permanently under his roof, and also that, i.e. Ganesh Singh was to remain in possession of, and enjoy the usufruct of that part of the land, which was not bid, and had already been brought under cultivation, for 8 years from the date of sale, and after the expiry of that period, he would convey the property back to Daryao Singh by a deed of re-conveyance and also restore possession to him, and thus the loan of Rs. 1844.50 p. shall stand fully paid off. It was upon those terms, Daryao Singh alleged that he in good faith and bona fide belief accepted the proposal and requested Major Wali Mohammad to execute a sale-deed in the name of Sunder Singh and Mst. Mathura Bel It was further alleged that the transaction was, in fact, a sort of oral usufructuary mortgage in favour of Ganesh Singh by Daryao Singh, The stand taken in the amended plaint is, therefore, that Daryao Singh and not Ganesh Singh was the real purchaser and Sunder Singh and Mst. Mathura Bai were mere benaminars for him.
14. In support of his arguments, learned counsel appearing on behalf of Daryao Singh and others drew our attention to the testimony of Zafar All Hussain (P.W. 13), agent of Major Wall Mohammad, Narbada Charan (P.W. 1) petition writer, Premnarayan (P,W. 3), Narbar Singh (P.W. 6), village patel, Daryao Singh (P.W. 7), Kishore Singh (P.W. 8), Kamal Singh (P.W. 11) and Pritam Singh (P.W. 12). Their evidence tends to prove the alleged oral agreement between Daryao Singh and Ganesh Singh, The evidence was to substantiate the plea that Daryao Singh was the real purchaser, and the balance of consideration of Rupees 1,844.50 p. was advanced by Ganesh Singh under the arrangement pleaded. That evidence is, therefore, of no avail. Besides, we have no manner of doubt that the evidence is got-up. It appears to us that Daryao Singh and Ganesh Singh have joined hands to defeat the rights of Barelal and Ramratan. It would be sufficient if we refer to the testimony of Zafar Ali Hussain (P.W. 13), agent of Major Wall Mohammad. This witness would have us believe that when the sale-deed, Ex. P-21 wag executed, it was settled orally between Daryao Singh and Ganesh Singh, that in lieu of the loan of Rs. 1,844.50 p. advanced by Ganesh Singh, he would remain in possession of the Lands in suit and enjoy the usufruct thereof, and after expiry of the period, execute a deed of reconveyance in favour of Daryao Singh. The testimony of this witness does not inspire confidence. He admits during his cross-examination, that the talk took place in the village. He was the agent of Major Wali, Mohammad. He would, therefore, be present at the office of the Sub-Registrar at the time of the execution, and not at the time of the alleged talk in. the village. The evidence of the other witnesses is no better.
15. In our judgment, the learned Additional District Judge has rightly held, on a consideration of the surrounding circumstances and the probable causes likely to have operated on the minds of the parties to bring about the transaction, that the sale was taken by Ganesh Singh in the name of his son Sunder Singh and his widowed sister Mst Mathura Bai, with the object that the property should belong to them and it should not be within the reach of Daryao Singh or himself. The property was mutated in their names. They were in possession and enjoyment of the same. They were dealing with it as their own. There was apparently no reason for Ganesh Singh to purchase the property benami in their names. The two documents on which Daryao Singh relies, Exs. P-6 and P-18, are destructive of his case that Sunder Singh and Mst. Mathura Bai were mere benamidars of Ganesh Singh. Ganesh Singh has put his signature for and on behalf of Sunder Singh, and not on his own behalf. This indicates that at the time of execution of these documents, both Daryao Singh and Ganesh Singh considered that Sunder Singh and Mst. Mathura Bai were the real owners, and that Ganesh Singh could act only on their behalf, and not in his own right. The alleged agreement, Ex. P-5, executed by Genesh Singh also amounts to an admission by him that, in fact, Sunder Singh and Mst. Mathura Bai were the real owners of the suit lands. We also uphold the finding of the learned Additional District Judge that since Ganesh Singh was not the real owner, and inasmuch as there was no lawful authority in him to act on behalf of Sunder Singh and Mst. Mathura Bai, the agreement dated 1-10-1964, Ex. P-5, executed by Ganesh Singh on behalf of Sunder Singh as his guardian, would not be binding on Sunder Singh, and could not create any right in Daryao Singh to obtain a sale-deed from Sunder Singh, in pursuance of the said agreement.
16. The appeals must, accordingly, fail and are dismissed with costs. Counsel's fee as per schedule, if certified.